In re Marriage of Knoerr

• Decision Date: 21 December 2007
• Docket Number: No. 2-06-1060.,2-06-1060.
• Citation: 316 Ill.Dec. 665,879 N.E.2d 1053
• Parties: In re MARRIAGE OF Nancy KNOERR, Petitioner-Appellee, and David Knoerr, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

879 N.E.2d 1053

316 Ill.Dec. 665

In re MARRIAGE OF Nancy KNOERR, Petitioner-Appellee, and David Knoerr, Respondent-Appellant.

No. 2-06-1060.

Appellate Court of Illinois, Second District.

December 21, 2007.

J. Brian Pierce, J. Brian Pierce & Associates, Chicago, for David Knoerr.

Elizabeth M. Rochford, Lincolnwood, for Nancy Knoerr.

Justice BOWMAN delivered the opinion of the court:

In this postdissolution proceeding, respondent, David Knoerr, appeals a judgment granting the petitions of petitioner, Nancy Knoerr, for (1) contribution to the college expenses of the parties' son, Michael Knoerr (see 750 ILCS 5/513 (West 2006)) and (2) increased child support (see 750 ILCS 5/510(a) (West 2006)). Respondent contends that the judgment is based on an incorrect factual finding and that the trial court erroneously assumed that proceeds from a home equity loan were part of respondent's net income (see 750 ILCS 5/505(a)(3) (West 2006)). However, we do not reach the merits of respondent's case because, in evaluating the record before us, we determine that we lack jurisdiction to do so.

I. BACKGROUND

The parties were married in December 1977 and have four children: Adam and Eric, who were emancipated at all pertinent times; Michael, born December 15, 1984; and Christine, born August 26, 1989. On September 21, 1990, a judgment dissolved the parties' marriage and awarded petitioner custody of the children. Late in 2005, petitioner petitioned to require respondent to contribute to Michael's college expenses. (The petition is not in the record, but respondent filed a response on November 30, 2005.) On April 7, 2006, petitioner petitioned to increase child support, relying on a trial court order of October 7, 2003. On July 11, 2006, the trial court held a trial on both petitions and entered a judgment requiring respondent (1) to contribute 65% of Michael's annual college expenses; and (2) to pay child support of $1,750 per month, retroactive to April 7, 2006; pay $213 for health and dental insurance for July 2006, with the monthly amount to increase once a year until August 2009, after which he would pay $390 monthly; and pay $75 monthly toward uninsured medical expenses.

On August 7, 2006, respondent moved to reconsider, arguing in part that the home equity loan was not income. On September 8, 2006, petitioner petitioned for an award of attorney fees for a previous contempt proceeding. On September 11, 2006, she petitioned for a rule to show cause, alleging that respondent was refusing to comply with the July 11, 2006, order. On September 26, 2006, the trial court denied respondent's motion to reconsider, granted petitioner's fee petition, and continued petitioner's petition for a rule to show cause. On October 24, 2006, respondent filed his notice of appeal, appealing the July 11, 2006, order and the September 26, 2006, order, denying his motion for reconsideration. Neither trial court order contained language pursuant to Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)).

II. ANALYSIS

While the parties have not addressed this court's jurisdiction, we have an independent duty to verify our jurisdiction and dismiss the appeal if we lack it. In re Marriage of Gaudio, 368 Ill.App.3d 153, 156, 306 Ill.Dec. 239, 857 N.E.2d 332 (2006). We note that petitioner's petition for a rule to show cause was pending at the time that respondent filed his notice of appeal, and the question before us is whether respondent could appeal without a Rule 304(a) finding while the petition for a rule to show cause was still pending. Rule 304(a) provides:

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. * * * In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." 210 Ill.2d R. 304(a).

Under a recent Second District opinion, In re Marriage of Gutman, 376 Ill.App.3d 758, 763, 315 Ill.Dec. 806, 877 N.E.2d 1135 (2007), we would have jurisdiction in this case, as the Gutman court held that civil contempt petitions initiate separate proceedings and not "claims" within the action thereby excepting them from Rule 304(a). However, we believe that Gutman's conclusion, that pending or denied civil contempt petitions are not subject to Rule 304(a), is based on flawed analysis, and we overrule it.

In Gutman, while the respondent's civil contempt petition was pending, she appealed a trial court order denying her motion to vacate an order that terminated her maintenance award. Gutman, 376 Ill. App.3d at 759, 315 Ill.Dec. 806, 877 N.E.2d 1135. The order terminating her maintenance award did not contain language pursuant to Rule 304(a). Gutman, 376 Ill. App.3d at 760, 315 Ill.Dec. 806, 877 N.E.2d 1135. In its analysis, Gutman concluded that although the respondent's contempt petition and the petition to terminate maintenance were "parts of the same dissolution action, the contempt petition did not raise a `claim for relief' in that action, for the purposes of Rule 304(a)." Gutman, 376 Ill.App.3d at 761, 315 Ill.Dec. 806, 877 N.E.2d 1135. To reach this conclusion, Gutman relied on Kazubowski v. Kazubowski, 45 Ill.2d 405, 415, 259 N.E.2d 282 (1970). Gutman, 376 Ill.App.3d at 761-62, 315 Ill.Dec. 806, 877 N.E.2d 1135. However, Gutman's conclusion was incorrect for two reasons. First, it misapplied the holding of Kazubowski, forgoing years of leg al precedent that holds that only contempt orders imposing fines or imprisonment may be appealed without a Rule 304(a) finding. See In re Marriage of Alyassir, 335 Ill.App.3d 998, 270 Ill.Dec. 419, 782 N.E.2d 978 (2nd Dist.2003); In re Marriage of Colangelo, 355 Ill.App.3d 383, 388, 290 Ill.Dec. 986, 822 N.E.2d 571 (2nd Dist.2005). Second, it essentially rendered Rule 304(b)(5) (210 Ill.2d R. 304(b)(5)) meaning less by expanding that exclusion beyond its explicit language.

In Kazubowski, the trial court found the defendant to be in willful contempt, ordered him to pay fines, and ordered him to the county jail if he did not pay the fines. Kazubowski, 45 Ill.2d at 407, 259 N.E.2d 282. The plaintiff argued that without a Rule 304(a) finding, the defendant could not appeal the contempt order, because other petitions remained pending in the matter. Kazubowski, 45 Ill.2d at 414, 259 N.E.2d 282. The supreme court held that where a sanction had been imposed, the contempt order was final and appealable without Rule 304(a) language. Kazubowski, 45 Ill.2d at 414-15, 259 N.E.2d 282. The supreme court explained:

"There is authority * * * for the proposition that where an order is in effect specifically enforceable by use of the contempt process it is final and appealable whether or not there has been a finding pursuant to [Rule 304(a)]. [Citations.] This court has also recognized that ordinarily an adjudication in a contempt proceeding is final and appealable because it is an original special proceeding, collateral to, and independent of, the case in which the contempt arises where the imposition of the sanction does not directly affect the outcome of the principal action." (Emphasis added.) Kazubowski, 45 Ill.2d at 414-15, 259 N.E.2d 282.

Gutman took the above from Kazubowski and essentially eliminated the emphasized language to conclude that "although a civil contempt petition is a part of the underlying action, it does not raise a `claim for relief' in that action. Indeed, if a civil contempt petition were both a part of the underlying action and a `claim for relief' in that action, there would be nothing original and special about it at all." Gutman, 376 Ill.App.3d at 763, 315 Ill.Dec. 806, 877 N.E.2d 1135. Kazubowski neither held nor suggested that a pending contempt petition or a denial of such a petition implicated a right to appeal without a Rule 304(a) finding, as the Gutman court posits. Gutman, 376 Ill.App.3d at 763, 315 Ill.Dec. 806, 877 N.E.2d 1135. Rather, it indicated that the imposition of fines or imprisonment was what required such "original special proceeding[s]" to be treated differently. Kazubowski, 45 Ill.2d at 414-15, 259 N.E.2d 282.

The Kazubowski court itself cited People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 183-84, 226 N.E.2d 6 (1967), which involved an order that held General Motors in contempt of court, struck General Motors' answer to the plaintiff's amended complaint, and entered judgment against General Motors. The Bua court determined that the order, while couched in terms of contempt, was not final and appealable because the sanction imposed directly impacted the outcome of the principal action. Bua, 37 Ill.2d at 190-91, 226 N.E.2d 6. The court explained that the "imposition of a fine or imprisonment as a sanction for contempt is final and appealable because it is an original special proceeding, collateral to, and independent of, the case in which the contempt arises." Bua, 37 Ill.2d at 191, 226 N.E.2d 6. While normally such a sanction would not directly affect the out come of the principal action and would be appealable, the order in Bua did affect the outcome of the underlying action. Bua, 37 Ill.2d at 191, 226 N.E.2d 6. Kazubowski's holding is consistent with Bua, as its contempt order imposed a fine or imprisonment, which, unlike in Bua, did not affect the outcome of the principal action, thus making it an original special proceeding that was final and appealable. Kazubowski, 45 Ill.2d at 414-15, 259 N.E.2d 282.

Other cases have similarly held that, without Rule 304(a) language, civil contempt orders are final and appealable only...